REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2010
(Arising out of SLP(C) No. 11621 of 2006)
Shimnit Utsch India Pvt. Ltd. & Anr. ...Appellants
Versus
West Bengal Transport Infrastructure
Development Corporation Ltd. & Ors. ...Respondents
WITH
CIVIL APPEAL NO. OF 2010
(Arising out of SLP(C) No. 11988 of 2010)
JUDGEMENT
R.M. Lodha, J.
Leave granted.
2. Of the two appeals by special leave, one has been
preferred by Shimnit Utsch India Private Limited (for short,
`Shimnit’) being aggrieved by the judgment dated June 27,
2006 of the Calcutta High Court whereby the Division Bench
dismissed their appeal and affirmed the order dated February
20, 2006 of the Single Judge dismissing their writ petition and
the other at the instance of M/s Tonnjes Eastern Security
Technologies Private Limited (for short, `Tonnjes’) challenging
the order dated March 23, 2010 whereby the Division Bench of
Orissa High Court dismissed their writ petition.
The Issue
3. The common question that arises for consideration in the
two appeals is, whether after decision of this Court in
Association of Registration Plates v. Union of India and Ors.1
wherein the conditions provided for experience in the field of
registration plates in the foreign countries and a minimum
annual turnover from such business were upheld as essential
conditions in the Notices Inviting Tenders (NIT) for award of
contract for manufacture and supply of High Security
Registration Plates (HSRP) for motor vehicles, it is necessary
for the State Governments to continue with these conditions or
it is permissible for them to do away with such conditions.
1
(2005) 1 SCC 679
2
Factual and legal background in Association of
Registration Plates
4. The Motor Vehicles Act, 1988 (for short, `1988 Act’)
came into force on July 1, 1989. Chapter -IV thereof deals with
registration of motor vehicles as defined in Section 2(28). Sub-
section (6) of Section 41 provides that the registering authority
shall assign to the vehicle, for display thereon, a distinguishing
mark (registration mark) consisting of one of the groups of such
of those letters and followed by such letters and figures as are
allotted to the State by the Central Government from time to
time by notification in the Official Gazette. Pursuant thereto a
Notification came to be issued by the Central Government on
July 1, 1989 allocating group of letters to various States. The
Central Motor Vehicles Rules, 1989 [for short, `1989 Rules’)
were framed by the Central Government in exercise of its
powers under Section 64 and other relevant provisions of 1988
Act. Rule 50 of 1989 Rules provides for form and manner of
display of registration marks on the motor vehicles. The said
Rule 50 has been amended from time to time and new system
of HSRP thereunder is now to come into effect from
June 1, 2010.
3
5. Under sub-section (3) of Section 109 of 1988 Act,
the Central Government issued Motor Vehicles (New High
Security Registration Plates) Order, 2001 (for short, `Order,
2001′). On October 16, 2001, the Central Government further
issued Motor Vehicles [New High Security Registration Plates
(Amendment)] Order, 2001 (for short, `Amendment Order,
2001′). Amendment Order, 2001 provided for certain standards
in respect of the new system of HSRP for motor vehicles and
the process used by a manufacturer or vendor for
manufacturing or supplying such plates.
6. On March 6, 2002, a communication laying down
guidelines for incorporating necessary conditions in the NIT to
be issued by the various States and Union Territories (UTs)
was circulated by the Central Government to all States and
UTs. The guidelines, inter alia, provided; (i) the tender
document would specify whether the appointment of the vendor
is for the whole State or for certain parts; (ii) the tender
document would specify the terms of the bank guarantee; (iii)
the tender document would require a report back on certain
aspects on `a periodic and regular basis’ and (iv) the bidder
4
must furnish proof of past experience/expertise in this area or
proof of the same with the collaborator. By further
communication dated June 14, 2002 the aforenoticed NIT
guidelines were modified by the Central Government and it was
suggested that the bidders may be asked to provide details
about the experience/capability of its collaborator to the
satisfaction of the State authorities. By another communication
dated November 13, 2002, the Central Government clarified to
the States and UTs that the guidelines are suggestive in nature
and left the discretion to the States and UTs in the matter of
issuing NIT but reiterated security concern.
7. In the light of the guidelines suggested by the
Central Government, several States/UTs issued NIT which,
inter alia, included conditions, namely, (i) experience in the field
of registration plates i.e., bidder should be working at least in
five countries for licence plates and in a minimum of three
countries with licence plates having security features
worldwide; (ii) the bidder must have had a minimum annual
turnover equivalent to INR 30 crores immediately preceding last
year; at least 25% of this turnover must be from the licence
5
plate business and (iii) the contract will be for a period of 15
years.
8. The NIT containing the aforenoticed conditions
issued by several States led to filing of writ petitions before
various High Courts. Few writ petitions were filed directly before
this Court. Since the controversy was common, writ petitions
filed before High Courts were transferred to this Court and
taken up along with writ petition filed by Association of
Registration Plates1. It was argued on behalf of the petitioners
before this Court that these conditions in NIT have been
tailored to favour companies having foreign collaboration and
aimed at excluding indigenous manufacturers from the tender
process; there are not more than one or two companies that
could satisfy the stringent eligibility conditions laid down in NIT;
Indian manufacturers are fully competent to be involved for the
implementation of the scheme of HSRP but the condition
concerning experience in foreign countries has obviated any
chance of their participating in the bidding process; fixing high
turnover from such business is only for the purpose of
advancing the business interest of a group of companies having
6
foreign links and support and that it is impossible for any
indigenous manufacturer of security plates to have a turnover of
approximately 12.5 crores from the HSRP which are sought to
be introduced in India for the first time and the implementation
of the project has not yet started in any of the States.
9. The States who had issued NIT defended the
impugned tender conditions before this Court. Insofar as the
State of West Bengal is concerned, a counter affidavit was filed
through West Bengal Transport Infrastructure Development
Corporation Ltd. (WBTIDCL). It was stated in the counter
affidavit that impugned conditions in NIT are intended to
achieve the high objective of public safety involved in the
implementation of HSRP. The relevant averments in the
counter affidavit are reproduced below :
“……… The State Governments realizing the
importance of the project came out with various
conditions in the Tender which are primarily related to
seeing the experience and the capacity of the
manufacturer to undertake such a huge task concerning
the manufacturing and supply of HSRPs in the State.
The State Government therefore came out with
conditions to insure that the manufacturer who supplied
the HSRPs in the State is not fly-by-night operator but is
personally experienced enough and capable enough to
carry out such an activity……..
7
……………The power therefore is wide enough to
include aspects, which may not have been provided
specifically elsewhere in the Act. The Central
Government is well within its powers to prescribe the
fact that the State Government has the power to select
the manufacturer of HSRPs as it is State Government
which understood its specific requirements and needs
and has to be satisfied about the competence of the
manufacturer that whom it has to work jointly in order to
ensure that the objective behind the HSRPs scheme is
not deviated. In the absence of such a provision the
whole scheme of HSRPs which means towards
achieving public safety and security by ensuring that
there is issuing control and supervision of HSRPs by the
State Government will get deviated.
…………The State under the Tender wishes to choose
a person who is already worked in connection with
HSRPs rather than chose a person who merely claims
that it can deliver. Surely in a project of such a large
scale concerning public safety and security the State
cannot be justified to employ the hit and trial method.
………….The objective by no means can be lost of or
given an improper degree of attention. The objective is
to ensure highest levels of public safety and security
established in the wake of the uncertain times that
people are subject to these days. Consequently, the
introduction of HSRPs mandates adherence to highest
standards both in supply of manufacturing quality of
products, required supply of the quantity of the project
and above al mandates coordination with the State will
have the general control and supervision over the
issuance of these number plates. The fact is mentioned
are by no means exhaustive but are only given to
illustrate the basis tenets of the whole business of
HSRPs. The State Government by no means can adopt
a hit and trial method in a project of such a vast nature.
It has been no necessarily ensured that the
manufacturer is selected by a fair, competitive and
transparent means of selection, which is the Tender
process. The selection necessarily has to happen
amongst the TAC holders. The State Government has
8
to be satisfied to the extent to leaving no scope of doubt
with regard to the expertise and capability of the
selected manufacturer of HSRPs the State Government
has to be satisfied that the company concerned will be
able to meet the requirement both on the qualitative and
quantitative basis and in bare commercial terms the
company chosen is the best company amongst the TAC
holders. The scheme envisages constant cooperation
and coordination amongst the supplier and the State.
Any brake at any point of time in the system as
envisaged will deviate the objective which is sought to
be achieved. It is in this background that the
challenge/grievances of the petitioner must be viewed.”
Decision in Association of Registration Plates
10. This Court dismissed the entire group of writ
petitions on November 30, 2004. The tender conditions relating
to experience in foreign countries, prescribed percentage of
turnover from such business and term of 15 years were not
held to be arbitrary, discriminatory or mala fide; rather these
conditions were held in public interest. This Court observed :
7 The State as an implementing authority has to ensure that
the scheme of HSRPs is effectively implemented.
Keeping in view the enormous work involved in switching
over to new plates within two years for existing vehicles,
resort to “trial-and-error” method would prove hazardous.
7 The State Government’s right to get the right and most
competent person cannot be questioned.
7 The State Government has to eliminate manufacturers
who have developed recently just to enter into the new
field.
9
7 The insistence of the State to search for an experienced
manufacturer with sound financial and technical capacity
cannot be misunderstood.
7 The terms and conditions in NITs are so formulated to
enable the State to adjudge the capability of a particular
tenderer who can provide a fail-safe and sustainable
delivery capacity.
7 Only such tenderer has to be selected who can take
responsibility for marketing, servicing and providing
continuously the specified plates for vehicles in large
numbers, firstly in the initial two years, and annually in the
next 13 years.
7 Capacity and capability are the two most relevant criteria
for framing suitable conditions of any notices inviting
tenders and the conditions of experience and turnover
incorporated as essential conditions are to ensure that the
manufacturer selected would be technically and
financially competent to fulfill the contractual obligations,
which, looking to the magnitude of the job, requires huge
investment qualitatively and quantitatively.
Facts post 30.11.2004
(A) West Bengal
11. After the decision of this Court in Association of
Registration Plates1 on November 30, 2004, the Government of
West Bengal evaluated the bids already submitted in
accordance with the NIT and the bid of Shimnit was cleared at
the prequalification stage. One M/s. Promuk Hoffman
10
International Ltd., (`Promuk’ for short) was also declared
qualified. Shimnit challenged the pre-qualification of Promuk by
filing a writ petition (468/2005) before Calcutta High Court on
the ground that they did not have requisite international
experience. On March 11, 2005, the Single Judge of Calcutta
High Court by an interim order stayed the finalization of tender.
12. On April 27, 2005, however, the Government of
West Bengal (Transport Department) issued a Notification
canceling its NIT for supply and fitment of HSRP for motor
vehicles issued earlier. The said Notification reads as follows :
“Government of West Bengal
Transport Department
Writers’ Building
No. 2672 WT/3M-56/2003 PL III Dated 27.04.2005
NOTIFICATION
WHEREAS Notice Inviting Tender (NIT) was issued and
published in various newspapers on 03.07.2003 &
04.7.2003 respectively, fixing 06.08.2003 as the last
date for submission of such Tender papers for supply
and fitment of High Security Registration Plates for
Motor Vehicles, by the West Bengal Transport
Infrastructure Development Corporation Limited (A
Government of West Bengal Undertaking) on behalf of
the Government of West Bengal under instructions from
the Transport Department;
11
AND WHEREAS only 4 (four) nos. of Bidders
participated in the said tender process which was
subsequently stayed as per orders of the Hon’ble
Supreme Court in Writ Petition (Civil) No. 41 of 2003
and the other connected cases;
AND WHEREAS the Hon’ble Supreme Court of India by
an order dated 30.11.2004 disposed of the said Writ
Petition (Civil) No. 41 of 2003 and other connected
cases with certain observations, holding inter alia, that
the concerned State Governments are legally
competent to determine the terms and conditions for
implementation of the scheme for High Security
Registration Plates for Motor Vehicles in conformity with
the provisions of the Motor Vehicles Act, 1989 and
Rules framed thereudner;
AND WHEREAS the Technical Bids submitted by those
Bidders could not yet be processed, evaluated and
finalized and whereas due to such non-evaluation of the
Technical Bids the Financial Bids as submitted by those
Bidders could not also be opened.
AND WHEREAS it has come to the notice of the State
Government that subsequent to issue of the said NIT a
considerable number of Manufactures of such High
Security Registration Plates have obtained the requisite
Type Approval Certificates from the Institution approved
by the Central Government as per provisions of the
Motor Vehicles Act, 1989 and Rules framed thereunder;
AND WHEREAS due passage of time and consequent
change in the relevant field due to coming up of a very
good number of duly approved manufacturers as
aforesaid and keeping in view the observations of the
Hon’ble Supreme Court of India in Writ Petition (Civil)
No. 41 of 2003 and other connected cases as stated
hereinabove, the Governor deems it fit that in greater
public interest and also in the interest of public safety &
security the terms and conditions of the said Notice
Inviting Tenders (NIT) for supply and fitment of High
Security Registration Plates for Motor Vehicles be
reviewed and determined afresh.
12
NOW, THEREFORE, the Governor is pleased to direct
that the entire tender process so far followed pursuant
to the aforesaid Notice Inviting Tenders (NIT) for supply
and fitment of High Security Registration Plates for
Motor Vehicles as issued by the West Bengal Transport
Infrastructure Development Corporation Limited on
behalf of the State Government be cancelled and fresh
process for inviting such bids be commenced after due
determination of the terms and conditions thereof in the
light of what has been stated herein above. The
Governor is further pleased to direct that the Bidders
(four numbers) who had participated in the previous
tender process to be initiated hereafter, if they so desire
and the Earnest Money Deposit (EMD) made by them
be returned forthwith.
This order shall come into effect immediately.
By Order of the Governor.
Sd/-
Sumantra Choudhury,
Principal Secretary,
to the Government of West Bengal.”
13. Shimnit was also informed by WBTIDCL vide
communication dated April 27, 2005 that the bidding process in
terms of earlier NIT has been cancelled and requested them to
collect the refund of their earnest money.
14. On October 4, 2005, a fresh NIT (hereinafter
referred to as `second NIT’) came to be issued by WBTIDCL for
13
manufacture and supply of HSRP, inter alia, to the following
effect :
“BID
FOR
NOTICE
INVITING BIDS FOR HIGH SECURITY
REGISTRATION PLATESThe Transport Department, Government of West Bengal
has decided to implement through WBTIDC Ltd. the
revised Rule 50 of Central Motor Vehicle Rules, 1989 as
modified by the Government of India, Ministry of Roads,
Transport and Highway vide Notification issued from
time to time for implementation of High Security
Registration for all existing registered vehicles and also
new vehicles to be registered in West Bengal for a
period of 10 years.
Now, on behalf of the Transport Department,
Government of West Bengal, The Managing
Director/West Bengal Transport Infrastructure
Development Corporation Limited (WBTIDC), invites
bids for selection of eligible bidders having Type
Approval from authorized agencies of Government of
India and adequate financial resources to undertake the
production of High Security Regulation Plates in
conformity with the specifications. A panel of Bidders
will be finally selected to implement and operate in two
designated zones of the States on Build, Operate and
Transport (BOT) basis.
The intending Bidders which may be single firm, Joint
Venture or a Consortium should have in addition to
above a minimum annual average Turnover of Rs. 50
crores and net worth of Rs. 20 crores as per audit
balance sheet of 2003-04.
Bid documents containing detail scope of work and
other terms and conditions may be purchased from the
office of the Managing Director, WBTIDC, between
14
04.10.2005 and 20.10.2005 both days inclusive during
office hours, but excluding holidays, by paying a non-
refundable cost of the same amount of Rs. 50,000/-
(Rupees Fifty Thousand only) for each set of two copies
of Bid Documents, in the form of Demand Draft drawn in
favour of “West Bengal Transport Infrastructure
Development Corporation Ltd.” payable in Kolkata.
Bid must be accompanied with the Earnest Money
Deposit (EMD) of Rs. 25,00,000/- (Rupees Twenty five
lacs only) in the form as specified in bid documents. No
exemption certificate in this regard will be accepted.
Bids completed in all respect must be submitted in a
sealed cover super scribed Bid for HSRP, WB at the
office of the Managing Director, WBTIDC Ltd. on or
before 14.00 hrs on 14.11.2005 and will be opened as
per schedule indicated in the Bid Document. In case the
date of receiving the Bids happens to be a holiday, bids
will be received on the next working day.
WBTIDC Ltd. reserves the right to reject any or all bids
or annual bidding process without assigning any reason,
thereof……….”
15. In the second NIT, clauses pertaining to experience
in the foreign countries and the minimum prescribed turnover
from such business were done away with; the period was also
reduced from 15 years to 10 years.
16. Pursuant to the second NIT, Shimnit submitted its
tender on November 21, 2005 and simultaneously filed a writ
petition before Calcutta High Court challenging the conditions of
second NIT, principally on the ground that the essential
15
conditions pertaining to experience in foreign countries and the
prescribed turnover from such business having been approved
by the Supreme Court could not have been done away with.
Shimnit also prayed for interim order during the pendency of
writ petition. The controversy relating thereto reached this
Court and by an order dated January 5, 2006, this Court while
disposing of SLPs directed that the interim order that contract
shall not be awarded until further orders will continue to operate
till the matter is decided by the Single Judge. The Single Judge
by his judgment dated February 20, 2006 dismissed Shimnit’s
writ petition. An intra court appeal was preferred by Shimnit
before the Division Bench in which the interim order of status
quo was passed. The Division Bench ultimately dismissed the
intra court appeal vide judgment dated June 27, 2006 giving
rise to the present appeal by special leave.
(B) Orissa
17. On April 11, 2007, the Government of Orissa issued
NIT inviting bids for the manufacture and supply of HSRP in
respect of the existing motor vehicles and the vehicles to be
registered in the State of Orissa. The eligibility criteria provided
16
therein did not contain conditions like experience in the foreign
countries and minimum prescribed turnover from the said
business, although, the tender document did lay down that
bidder should have experience of working in the field of HSRP
having used the security features as mentioned in Rule 50 of
1989 Rules.
18. After issuance of NIT dated April 11, 2007, Tonnjes
submitted representations to the Government of Orissa on May
9, 2007 and May 15, 2007 requesting for
amendment/modification of the tender conditions so as to bring
it in conformity with the conditions approved by this Court in
Association of Registration Plates1.
19. On May 16, 2007, a Corrigendum-III was issued by
the Transport Commissioner-cum-Chairman, State Transport
Authority, Government of Orissa extending the due date
beyond May 24, 2007. It is the case of Tonnjes that no further
steps were taken by the Government of Orissa in pursuance of
the said NIT.
20. On July 6, 2009, a fresh NIT was issued by the
Government of Orissa for manufacture, distribution and
17
affixation of HSRP at a Build Own Operate (BOO) basis.
Tonnjes again made a representation to the Government of
Orissa for bringing the terms and conditions of the fresh NIT in
conformity with the decision of this Court in Association of
Registration Plates1. When nothing was heard from the
Government of Orissa, Tonnjes filed a writ petition before the
Orissa High Court for quashing that NIT. The High Court, by
way of an interim order, directed that the bids pursuant to the
said NIT may be permitted to be filed by the bidders as per the
tender rules but no further action shall be taken without leave of
the Court.
21. The Division Bench of the Orissa High Court heard
the arguments and by its judgment dated March 23, 2010
dismissed the writ petition filed by Tonnjes.
Writ Petition (PIL) by Maninderjit Singh Bitta
22. One Maninderjit Singh Bitta filed a writ petition
before this Court in public interest seeking implementation of
the judgment by this Court in Association of Registration
Plates1. It was urged that though in the aforesaid judgment
18
norms were fixed and the desirability of having HSRP has been
highlighted but nothing concrete has been done by the States
and UTs. This Court disposed of writ petition on May 8, 2008
and gave time of six months to States and UTs to take decision
as to whether there is need for giving effect to the amended
Rule 50 and the scheme of HSRP and the modalities to be
followed.
23. Maninderjit Singh Bitta filed an Interlocutory
Application No. 5 before this Court seeking clarification of the
order dated May 8, 2008. The said application was disposed of
by this Court on May 5, 2009 by the following order :
“It is made clear that there was no discretion given to
the States/UTs not to give effect to the amended Rule
50 and the claim of HSRP and the modalities to be
followed. It is stated by learned counsel for the
petitioner that in some cases no action has been taken
by the concerned States and the UTs within the period
of six months as was given. Needless to say that if
same is the position, the directions shall be carried out
immediately and not later than three months from
today.”
24. On August 26, 2009, the Government of India,
Ministry of Road Transport and Highways addressed a letter to
the States and UTs requesting them to take all necessary steps
for implementation of HSRP scheme by the end of 2009. In the
19
said letter the Government of India brought to the notice of the
States and UTs the order of this Court dated May 5, 2009 and
also informed them to keep in view the judgment of this Court in
Association of Registration Plates1.
25. On September 11, 2009, a further letter was sent by
the Government of India to the States and UTs informing them
that a committee has been constituted by the Ministry to review
the progress of implementation of HSRP and other related
issues. The States and UTs were requested to implement the
scheme of HSRP as early as possible.
26. On behalf of Union of India, few applications came
to be filed (I.A. Nos. 6-9) before this Court in disposed of writ
petition no. 510 of 2005 (Maninderjit Singh Bitta) for extension
of time to ensure compliance with the directions contained in
order dated May 5, 2009. These applications were disposed of
by this Court on December 15, 2009 by extending time upto
May 31, 2010.
Contentions
27. Mr. F.S. Nariman, learned senior counsel appearing
for Shimnit submitted that in Association of Registration Plates1,
20
after considering the scheme of HSRP including the guidelines
issued by the Central Government and the conditions in the NIT
pertaining to experience in the foreign countries and the
turnover from the said business, this Court held that these are
essential conditions of the tender aimed to ensure that the
manufacturer selected would be technically and financially
competent to fulfill the contractual obligations keeping in view
the magnitude of the job and the huge investment required in
the project. He submitted that these conditions having got the
seal of approval from this Court could not have been done
away with in second NIT and if for any reason the State
Government thought of cancelling the first NIT and decided to
issue fresh NIT dispensing with the conditions of experience in
foreign countries and prescribed minimum turn over from such
business, they ought to have approached this Court for an
appropriate direction. Mr. F.S. Nariman submitted that in
Association of Registration Plates, the case pertaining to the
State of West Bengal was treated as a lead case and the State
of West Bengal vehemently defended the conditions in the first
NIT before this Court and now doing away with essential
21
conditions in the second NIT flies in the face of the law laid
down by this Court. Learned senior counsel submitted that it
was unfortunate that the State of West Bengal did not consider
itself bound by the law of land declared by the highest Court of
the country in a decision to which it was a party. He also
contended that the second NIT was designed to favour some of
the bidders and was clearly mala fide as the Shimnit had
challenged the prequalification of Promuk by filing a writ petition
before the Calcutta High Court and an interim order was
passed therein by the Single Judge staying the finalization of
tender. He, thus, submitted that the High Court was not correct
in dismissing Shimnit’s writ petition.
28. Mr. R.F. Nariman, learned senior counsel for
Tonnjes adopted the arguments of Mr. F.S. Nariman and also
invited our attention to the fact that as of now, except West
Bengal and Orissa, all other States have followed the essential
conditions approved by this Court in the case of Association of
Registration Plates in the NIT.
29. On the other hand, Mr. S. Ganesh, learned senior
counsel appearing for State of West Bengal and Mr. L.
22
Nageshwar Rao, learned senior counsel for State of Orissa
submitted that the conditions in the NIT issued by these two
States respectively are in the public interest and do not violate
constitutional or any other provision of law. They submitted that
the whole idea of not having the experience in the foreign
countries and the prescribed turnover from the said business is
to make available HSRP of the specifications as notified to the
motor vehicles in these States at reasonable rates without in
any manner compromising on safety, security, quality or
sustainable delivery capacity. Mr. S. Ganesh extensively read
the reasoning given by the Division Bench of the Calcutta High
Court in the impugned order and submitted that no interference
was called for in that order.
30. Mr. F.S. Nariman, learned senior counsel, in
rejoinder vehemently contended that the judgment of this Court
in Association of Registration Plates1 must be read as read by
this Court subsequently in Maninderjit Singh Bitta’s case. He
would contend that acquisition of Type of Approval Certificates
(TAC) does not mean that such manufacturers are
commercially competent to manufacture HSRP as TAC have
23
limited efficacy. Learned senior counsel also submitted that if
public interest could be served by the fulfillment of conditions in
first NIT, then how by deleting these essential conditions, public
interest could be achieved.
Tenders, Government contracts and change in policy :
Judicial Review
31. Before we refer to some of the important decisions
of this Court dealing with the aspects of judicial review in the
matters of government contracts, tenders and change in policy,
it is appropriate to notice the observations made in a couple of
English decisions and one Australian case on judicial review in
the matters of change in administrative policy.
32. In Hughes v. Deptt. of Health and Social Security2,
Lord Diplock, J. said:
“….Administrative policies may change with changing
circumstances, including changes in the political
complexion of governments. The liberty to make such
changes is something that is inherent in our
constitutional form of government…..”
2
1985 AC 776
24
33. In Attorney-General for the State of New South
Wales v. Quin3, Mason C.J. (majority view, Australian High
Court) observed :
“Once this is accepted, I am unable to perceive how a
representation made or an impression created by the
Executive can preclude the Crown or the Executive from
adopting a new policy, or acting in accordance with
such a policy, in relation to the appointment of
magistrates, so long as the new policy is one that falls
within the ambit of the relevant duty or discretion, as in
this case the new policy unquestionably does. The
Executive cannot by representation or promise disable
itself from; or hinder itself in, performing a statutory duty
or exercising a statutory discretion to be performed or
exercised in the public interest, by binding itself not to
perform the duty or exercise the discretion in a
particular way in advance of the actual performance of
the duty or exercise of the power…….”
34. In R. v. Secretary of State for Transport, Ex parte
Richmond upon Thames London Borough Council & Ors.4 while
laying down that the Wednesbury reasonableness test alone
was applicable for finding out if the change from one policy to
another was justified, Laws, J. stated :
“The court is not the Judge of the merits of the decision-
maker’s policy. … the public authority in question is the
Judge of the issue whether `overriding public interest’
justifies such a change in policy…. But this is no more
than to assert that a change in policy, like any
3
1990 64 ALJR 327
4
(1994) 1 All E.R. 577
25
discretionary decision by a public authority, must not
transgress Wednesbury principles…..”
35. Now, we consider the decisions of this Court. In
Mohd. Fida Karim and Anr. v. State of Bihar & Ors.5, while
dealing with a case of change in Government policy for licence
under Bihar Excise Act, this Court held thus :
“……The new policy of adopting the method of auction-
cum-tender is certainly a change of policy. The reason
for change of policy given by the Government is that it
realised that making settlement for five years would give
rise to monopolistic tendency, which will not be in public
interest, at the same time the interest of revenue was
not fully protected in the former policy. This clearly goes
to show that the Government wanted to adopt a new
policy in public interest to be made applicable from the
year 1991-92. Learned Counsel appearing on behalf of
the State of Bihar submitted in clear terms that the
earlier policy was wrong and the Government realised
its mistake and thus adopted a new policy to augment
its revenue and to avoid monopolistic tendency. We do
not find anything wrong in taking such view by the State
Government and to change its policy considering the
same to be in public interest………………”
36. This Court in Sterling Computers Limited v. M/s. M
& N Publications Limited & Ors.6, while dealing with judicial
review in a matter relating to publication of telephone
directories of Mahanagar Telephone Nigam Limited (a
5
(1992) 2 SCC 631
6
(1993) 1 SCC 445
26
Government of India Undertaking) made the following
observations :
“12. At times it is said that public authorities must have
the same liberty as they have in framing the policies,
even while entering into contracts because many
contracts amount to implementation or projection of
policies of the Government. But it cannot be overlooked
that unlike policies, contracts are legally binding
commitments and they commit the authority which may
be held to be a State within the meaning of Article 12 of
the Constitution in many cases for years. That is why
the courts have impressed that even in contractual
matters the public authority should not have unfettered
discretion. In contracts having commercial element,
some more discretion has to be conceded to the
authorities so that they may enter into contracts with
persons, keeping an eye on the augmentation of the
revenue. But even in such matters they have to follow
the norms recognised by courts while dealing with
public property. It is not possible for courts to question
and adjudicate every decision taken by an authority,
because many of the Government Undertakings which
in due course have acquired the monopolist position in
matters of sale and purchase of products and with so
many ventures in hand, they can come out with a plea
that it is not always possible to act like a quasi-judicial
authority while awarding contracts. Under some special
circumstances a discretion has to be conceded to the
authorities who have to enter into contract giving them
liberty to assess the overall situation for purpose of
taking a decision as to whom the contract be awarded
and at what terms. If the decisions have been taken in
bona fide manner although not strictly following the
norms laid down by the courts, such decisions are
upheld on the principle laid down by Justice Holmes,
that courts while judging the constitutional validity of
executive decisions must grant certain measure of
freedom of “play in the joints” to the executive.”
27
37. In the case of Tata Cellular v. Union of India7, a
three-Judge Bench of this Court extensively considered the
English decisions as well as the previous decisions of this Court
in the matter of judicial review and scope relating to
government contracts and tenders and deduced the legal
principles in paragraph 94 of the report thus :
“(1) The modern trend points to judicial restraint in
administrative action.
(2) The court does not sit as a court of appeal but
merely reviews the manner in which the decision
was made.
(3) The court does not have the expertise to correct
the administrative decision. If a review of the
administrative decision is permitted it will be
substituting its own decision, without the
necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be
open to judicial scrutiny because the invitation to
tender is in the realm of contract. Normally
speaking, the decision to accept the tender or
award the contract is reached by process of
negotiations through several tiers. More often
than not, such decisions are made qualitatively by
experts.
(5) The Government must have freedom of contract.
In other words, a fair play in the joints is a
necessary concomitant for an administrative body
functioning in an administrative sphere or quasi-
administrative sphere. However, the decision
must not only be tested by the application of
Wednesbury principle of reasonableness
7
(1994) 6 SCC 651
28
(including its other facts pointed out above) but
must be free from arbitrariness not affected by
bias or actuated by mala fides.
(6) Quashing decisions may impose heavy
administrative burden on the administration and
lead to increased and unbudgeted expenditure.”
38. That the award of a contract, whether it is by private
party or by a public body or the State is essentially a
commercial transaction was highlighted by this Court in Raunaq
International Ltd. v. I.V.R. Construction Ltd. & Ors.8 In that case,
this Court spelt out the following considerations that weigh in
making a commercial decision :
“(1) the price at which the other side is willing to do the
work;
(2) whether the goods or services offered are of the
requisite specifications;
(3) whether the person tendering has the ability to
deliver the goods or services as per specifications.
When large works contracts involving engagement of
substantial manpower or requiring specific skills are to
be offered, the financial ability of the tenderer to fulfil the
requirements of the job is also important;
(4) the ability of the tenderer to deliver goods or
services or to do the work of the requisite standard and
quality;
(5) past experience of the tenderer and whether he has
successfully completed similar work earlier;
8
(1999) 1 SCC 492
29
(6) time which will be taken to deliver the goods or
services; and often
(7) the ability of the tenderer to take follow-up action,
rectify defects or to give post-contract services.”
39. Again in the case of Punjab Communications Ltd. v.
Union of India & Ors.9, a two-Judge Bench of this Court
elaborately examined the principles of legitimate expectation
and a change in policy by the Government. While dealing with
second question formulated by the Court viz., whether if
essentially the Government decided to fund the proposed
contract for Eastern U.P. from its own resources, it was
permissible for the Government to change its policy into one for
providing telephones for rural areas in the entire country and
whether `legitimate expectation’ of the appellant in regard to the
earlier notification required the Court to direct that a notification
for Eastern U.P. should be continued, this Court held in
paragraph 45 of the report thus :
“45. It will be noticed that at one stage when the ADB
loan lapsed, the Government took a decision to go
ahead with the project on its own funds. But later it
thought that the scheme regarding telephones in rural
areas must cover not only the villages in Eastern U.P.
but also in other backward rural areas in other States.
9
(1999) 4 SCC 727
30
The statistics given in the counter-affidavits of the Union
of India to which we have already referred, show that
there are other States in the country where the
percentage of telephones is far less than what it is in
Eastern U.P. The said facts are the reason for the
change in the policy of the Government and for giving
up the notification calling for bids for Eastern U.P. Such
a change in policy cannot, in our opinion, be said to be
irrational or perverse according to Wednesbury
principles. In the circumstances, on the basis of the
clear principles laid down in ex p Hargreaves and ex p
Unilever, the Wednesbury principle of irrationality or
perversity is not attracted and the revised policy cannot
be said to be in such gross violation of any substantive
legitimate expectation of the appellant which warrants
interference in judicial review proceedings.”
40. In the case of Monarch Infrastructure (P) Ltd. v.
Commissioner., Ulhasnagar Municipal Corporation & Ors.10, this
Court was concerned with the question relating to NIT issued
by Ulhasnagar Municipal Corporation for appointment of agents
for collection of octroi and revision of terms and conditions
thereof. This Court held :
“…..The High Court had directed the commencement of
a new tender process subject to such terms and
conditions, which will be prescribed by the Municipal
Corporation. New terms and conditions have been
prescribed apparently bearing in mind the nature of
contract, which is only collection of octroi as an agent
and depositing the same with the Corporation. In
addition, earnest money and the performance of bank
guarantee are insisted upon; collection of octroi has to
be made on day-to-day basis and payment must be
made on a weekly basis entailing, in case of default,
10
(2000) 5 SCC 28731
cancellation of the contract. We cannot say whether
these conditions are better than what were prescribed
earlier for in such matters the authority calling for
tenders is the best judge. We do not think that we
should intercede to restore status quo ante the
conditions arising in clauses 6(a) and 6(b) of the Tender
Booklet and the bid offered much earlier by Konark
Infrastructure (P) Ltd. should be accepted, for it filed a
writ petition, which was allowed with a direction for
calling for fresh tenders…………”
41. In Union of India and Anr. v. International Trading
Co. and Anr.11, this Court held that non-renewal of permit by the
Government to a private party on ground of change in its policy
cannot be faulted if such change is founded on Wednesbury
reasonableness and is otherwise not arbitrary, irrational and
perverse. It was held :
“22. If the State acts within the bounds of
reasonableness, it would be legitimate to take into
consideration the national priorities and adopt trade
policies. As noted above, the ultimate test is whether on
the touchstone of reasonableness the policy decision
comes out unscathed.
23. Reasonableness of restriction is to be determined
in an objective manner and from the standpoint of
interests of the general public and not from the
standpoint of the interests of persons upon whom the
restrictions have been imposed or upon abstract
consideration. A restriction cannot be said to be
unreasonable merely because in a given case, it
operates harshly. In determining whether there is any
unfairness involved; the nature of the right alleged to
have been infringed, the underlying purpose of the
restriction imposed, the extent and urgency of the evil
11
(2003) 5 SCC 437
32
sought to be remedied thereby, the disproportion of the
imposition, the prevailing condition at the relevant time,
enter into judicial verdict. The reasonableness of the
legitimate expectation has to be determined with
respect to the circumstances relating to the trade or
business in question. Canalisation of a particular
business in favour of even a specified individual is
reasonable where the interests of the country are
concerned or where the business affects the economy
of the country.”
42. In the case of Directorate of Education and Ors. v.
Educomp Datamatics Ltd. and Ors.12, this Court, inter alia,
applied the principles enunciated in Tata Cellular7 and Monarch
Infrastructure (P) Ltd.10 and held as follows :
“12. It has clearly been held in these decisions that the
terms of the invitation to tender are not open to judicial
scrutiny, the same being in the realm of contract. That
the Government must have a free hand in setting the
terms of the tender. It must have reasonable play in its
joints as a necessary concomitant for an administrative
body in an administrative sphere. The courts would
interfere with the administrative policy decision only if it
is arbitrary, discriminatory, mala fide or actuated by
bias. It is entitled to pragmatic adjustments which may
be called for by the particular circumstances. The courts
cannot strike down the terms of the tender prescribed
by the Government because it feels that some other
terms in the tender would have been fair, wiser or
logical. The courts can interfere only if the policy
decision is arbitrary, discriminatory or mala fide.”
43. In Bannari Amman Sugars Ltd. v. Commercial Tax
Officer & Ors.13, this Court was concerned with the question
12
(2004) 4 SCC 19
13
(2005) 1 SCC 625
33
relating to withdrawal of benefits extended to appellant therein
as subsidy and it was held :
“………We find no substance in the plea that before a
policy decision is taken to amend or alter the promise
indicated in any particular notification, the beneficiary
was to be granted an opportunity of hearing. Such a
plea is clearly unsustainable. While taking policy
decision, the Government is not required to hear the
persons who have been granted the benefit which is
sought to be withdrawn.”
44. In Global Energy Limited & Anr. v. Adani Exports
Ltd. and Ors.14, this Court reiterated the principles that the
terms of the invitation to tender are not open to judicial scrutiny
and the courts cannot whittle down the terms of the tender as
they are in the realm of contract unless they are wholly
arbitrary, discriminatory or actuated by malice.
45. In Master Marine Services (P) Ltd. v. Metcalfe &
Hodgkinson (P) Ltd. & Anr.15, the legal position highlighted in
Tata Cellular7 was reiterated in the following words :
“12. After an exhaustive consideration of a large number
of decisions and standard books on administrative law,
the Court enunciated the principle that the modern trend
points to judicial restraint in administrative action. The
court does not sit as a court of appeal but merely
reviews the manner in which the decision was made.
The court does not have the expertise to correct the
administrative decision. If a review of the administrative
14
(2005) 4 SCC 435
15
(2005) 6 SCC 138
34
decision is permitted it will be substituting its own
decision, without the necessary expertise, which itself
may be fallible. The Government must have freedom of
contract. In other words, fair play in the joints is a
necessary concomitant for an administrative body
functioning in an administrative sphere or quasi-
administrative sphere. However, the decision must not
only be tested by the application of Wednesbury
principles of reasonableness but also must be free from
arbitrariness not affected by bias or actuated by mala
fides. It was also pointed out that quashing decisions
may impose heavy administrative burden on the
administration and lead to increased and unbudgeted
expenditure.”
Our View
46. In the light of the afore-noticed legal position, we
shall now examine whether judicial intervention is called for in
NIT issued by the State of West Bengal and State of Orissa for
manufacture and supply of HSRP. Insofar as State of West
Bengal is concerned, the first NIT was issued in the month of
July, 2003 fixing August 6, 2003 as the last date for submission
of tender papers. Pursuant thereto, four bidders participated.
The finalization of the tender process could not take place
because of interim order passed by this Court in Association of
Registration Plates1 and other connected cases. These cases
were decided by this Court on November 30, 2004. Of the four
bidders, who initially participated in the tender process, one
35
withdrew and as regards Promuk, an objection was raised by
Shimnit about their eligibility. Shimnit approached Calcutta
High Court and obtained an interim order from the Single Judge
that tender process shall not be finalized. As a matter of fact,
due to litigation no substantial progress took place for two years
in finalization of process for which NIT was issued in July, 2003
and practically two bidders in the entire tender process
remained in fray. In interregnum, considerable number of
indigenous manufacturers obtained the requisite TAC from the
approved institutions as per the provisions of 1988 Act and
thereby acquired capacity and ability to manufacture HSRP. In
the backdrop of these reasons, the State Government seemed
to have formed an opinion that by increasing competition,
greater public interest could be achieved and, accordingly,
decided to cancel first NIT and issued second NIT doing away
with conditions like experience in foreign countries and
prescribed minimum turnover from that business. Whether
State Government could have changed terms of NIT despite
the judgment of this Court in Association of Registration
Plates1? Once a particular matter relating to conditions in NIT
36
has been finally decided by the highest Court, the State
Government, which was party to the litigation, ought to have
proceeded accordingly but, in a case such as the present one,
where the circumstances changed in some material respects as
aforenoticed, departure from the earlier policy cannot be held to
be legally flawed, particularly when there is no challenge to the
changed policy reflected in second NIT on the ground of
Wednesbury reasonableness or principle of legitimate
expectation or arbitrariness or irrationality. In considering
whether there has been a change of circumstances sufficient to
justify departure from the previous stance, the Division Bench
of Calcutta High Court recorded a finding that reasons stated by
the State Government for departure from the conditions in the
first NIT did exist and accepted the contention of the State
Government that by increasing the area of competition, greater
public interest would be sub-served because of financial
implications. We have no justifiable reason to take a view
different from the High Court insofar as correctness of these
reasons is concerned. The courts have repeatedly held that
government policy can be changed with changing
37
circumstances and only on the ground of change, such policy
will not be vitiated. The government has a discretion to adopt a
different policy or alter or change its policy calculated to serve
public interest and make it more effective. Choice in the
balancing of the pros and cons relevant to the change in policy
lies with the authority. But like any discretion exercisable by the
government or public authority, change in policy must be in
conformity with Wednesbury reasonableness and free from
arbitrariness, irrationality, bias and malice.
47. In Association of Registration Plates1, this Court
while dealing with the challenge to the conditions with regard to
experience in foreign countries and prescribed minimum
turnover from that business observed that these conditions
have been framed in the NIT to ensure that the manufacturer
selected would be technically and financially competent to fulfill
the contractual obligations and to eliminate fly-by-night
operators and that the insistence of the State to search for an
experienced manufacturer with sound financial and technical
capacity cannot be misunderstood. While maintaining the State
Government’s right to get the right and most competent person,
38
it was held that in the matter of formulating conditions of a
tender document and awarding a contract of the nature of
ensuring supply of HSRP, greater latitude is required to be
conceded to the State authorities and unless the action of
tendering authority is found to be malicious and a misuse of
statutory powers, tender conditions are unassailable. On the
contentions advanced, this Court examined the impugned
conditions and did not find any fault and overruled all objections
raised by the petitioners therein in challenge to these
conditions. This Court has neither laid down as an absolute
proposition that manufacturer of HSRP must have the foreign
experience and a particular financial capacity to fulfill the
contractual obligations nor it has been held that these
conditions must necessarily be insisted upon in the NIT. The
judgment of this Court in Association of Registration Plates1
cannot be read as prescribing the conditions in NIT for
manufacture and supply of HSRP. Rather this Court examined
legality and justification of the impugned conditions within the
permissible parameters of judicial review and recognized the
right of the States in formulating tender conditions. In our
39
opinion, there is no justification in denying the State authorities
latitude for departure from the conditions of the NIT that came
up for consideration before this Court in larger public interest to
broaden the base of competitive bidding due to lapse of time
and substantial increase in the number of persons having TAC
from the approved institutes without compromising on the
quality and specifications of HSRP as set out in Rule 50, Order
2001 and Amendment Order, 2001.
48. Mr. F.S. Nariman, learned senior counsel heavily
relied upon a decision of this Court in S. Nagaraj & Ors. v.
State of Karnataka & Anr.16 and submitted that the decision of
this Court in Association of Registration Plates1 was binding on
all States and the said judgment has to be enforced and
obeyed strictly and any deviation from those conditions by the
States on their own is impermissible.
49. In S. Nagaraj & Ors.16, this Court observed as
follows :
“Was it so? Could the Government take up this stand?
Law on the binding effect of an order passed by a court
of law is well settled. Nor there can be any conflict of
opinion that if an order had been passed by a court
which had jurisdiction to pass it then the error or
16
1993 Suppl. (4) SCC 595
40
mistake in the order can be got corrected by a higher
court or by an application for clarification, modification
or recall of the order and not by ignoring the order by
any authority actively or passively or disobeying it
expressly or impliedly. Even if the order has been
improperly obtained the authorities cannot assume on
themselves the role of substituting it or clarifying and
modifying it as they consider proper. In Halsbury’s Laws
of England (Fourth Edn., Vol. 9, p. 35, para 55) the law
on orders improperly obtained is stated thus:
“The opinion has been expressed that the fact
that an order ought not to have been made is not
a sufficient excuse for disobeying it, that
disobedience to it constitutes a contempt, and
that the party aggrieved should apply to the court
for relief from compliance with the order.”
Any order passed by a court of law, more so by the
higher courts and especially this Court whose decisions
are declarations of law are not only entitled to respect
but are binding and have to be enforced and obeyed
strictly. No court much less an authority howsoever high
can ignore it. Any doubt or ambiguity can be removed
by the court which passed the order and not by an
authority according to its own understanding.”
50. The statement of law exposited in S. Nagaraj16 is
beyond question. As noticed above, in the case of Association
of Registration Plates1, this Court did not find any fault with the
controversial conditions in the NIT and overruled all objections
raised by the petitioners therein in challenge to those conditions.
The impugned conditions of NIT in that group of cases were not
held to be arbitrary, discriminatory or irrational nor amounted to
creation of any monopoly as alleged. The declaration of law by
41
this Court in Association of Registration Plates1 is that in the
matter of formulating conditions for a contract of the nature of
ensuring supply of HSRP, greater latitude needs to be
accorded to the State authorities. We find it difficult to hold that
by virtue of that judgment the impugned conditions were frozen
for all times to come and the States were obliged to persist with
these conditions and could not alter them in larger interest of
the public. In our view, the decision of this Court in Association
of Registration Plates1 did not create any impediment for the
States to alter or modify the conditions in the NIT if the
circumstances changed in material respects by lapse of time.
51. In the PIL filed by Maninderjit Singh Bitta, it was
prayed that the States and UTs be directed to implement the
judgment of this Court in Association of Registration Plates1 .
This Court disposed of the writ petition on May 8, 2008 by
observing, `we feel it would be in the interest of all concerned if
the States and Union Territories take definite decision as to
whether there is need for giving effect to the amended Rule 50
and the scheme of HSRP and the modalities to be followed’. It
was further observed that while taking the decision, the aspects
42
highlighted by this Court in Association of Registration Plates1
shall be kept in view. After disposal of the PIL, the petitioner
therein filed I.A. No. 5 for clarification of the order dated May 8,
2008 and this Court while disposing of the said I.A. on May 5,
2009 clarified that there was no discretion given to the
States/UTs not to give effect to the amended Rule 50 and the
claim of HSRP and the modalities to be followed. Thereafter,
I.A. was filed by the Central Government on September 17,
2009 before this Court for extension of time wherein the
following statement was made:
“The primary reason for non implementation of the
scheme has been the challenges to certain conditions of
the tender floated by various States. The issues such as
experience in foreign countries, minimum net worth and
turnover with a certain prescribed percentage of turn
over from number plate business in the immediately
preceding last three years and long term contract to a
single vendor for the entire State had been the subject
matter of WP(C) No. 41 of 2003–Association of
Registration Plates Vs. UOI & Ors. That this Hon’ble
Court in the judgment dated 30th November, 2004, laid
to rest all such issues by holding that all such conditions
were essential and mandatory conditions of the HSRP
tender to ensure that the vendors selected by the States
would be technically and financially competent to fulfill
the contractual obligations which looking to the
magnitude of the job requires huge investment
qualitatively and quantitatively.”
By order dated December 15, 2009, this Court extended the
time for implementation of HSRP upto May 31, 2010. None of
43
these orders holds that while implementing the new system of
HSRP, States and UTs are bound to incorporate the conditions
of foreign experience and minimum turnover from that business.
The statement made by the Central Government in its
application as aforenoticed only reflected the reason for non-
implementation of HSRP scheme. As a matter of fact, the
Central Government has clarified the position in its
communication with the States/UTs that draft tender conditions
circulated by them are only suggestive. Be that as it may. The
decision of this Court in Maninderjit Singh Bitta and the
subsequently clarificatory order therein are hardly relevant and
do not help the case of the appellants.
52. It is important to notice that the bids pursuant to the
second NIT have been evaluated by WBTIDCL and we have
been informed that the lowest bid per HSRP unit for a vehicle is
Rs. 469/- while the offer made by Shimnit (appellant) is of about
Rs. 1200/-. Such a huge difference in the rate per HSRP unit
shows that the action of the State Government in doing away
with the conditions of experience in foreign countries and
prescribed turnover from such business has been in larger
44
public interest without compromising on safety, security and
quality or sustainable capacity.
53. Mr. F.S. Nariman, learned senior counsel
contended that cancellation of first NIT and issuance of second
NIT by the Government of West Bengal was actuated with
malafides as Shimnit had challenged the pre-qualification of
Promuk by filing a writ petition before the Calcutta High Court
wherein an interim order also came to be passed. We are not
impressed by this submission at all and it is noted to be
rejected. There is no material much less substantial material to
infer any malafides. Merely because Shimnit challenged the
pre-qualification of Promuk before Calcutta High Court, it could
hardly lead to an inference of malafides.
54. It is true that the State or its tendering authority is
bound to give effect to essential conditions of eligibility stated in
a tender document and is not entitled to waive such conditions
but that does not take away its administrative discretion to
cancel the entire tender process in public interest provided such
action is not actuated with ulterior motive or is otherwise not
vitiated by any vice of arbitrariness or irrationality or in violation
45
of some statutory provisions. It is always open to the State to
give effect to new policy which it wished to pursue keeping in
view `overriding public interest’ and subject to principles of
Wednesbury reasonableness. The judgment of Guwahati High
Court in Real Mazon India Ltd. v. State of Assam and Ors.17
was also pressed into service by the appellants. In that case,
the corrigenda dated December 26, 2006, January 6, 2007 and
January 16, 2007 issued by the State of Assam deleting the
conditions of experience, expertise and exposure of the bidders
in the manufacture and supply of HSRP were challenged.
Guwahati High Court quashed the impugned corrigenda. We
are unable to approve the judgment of the Guwahati High Court
in Real Mazon India Ltd.17 for the reasons given above.
55. As regards the State of Orissa, it is an admitted
position that it issued NIT for the first time on April 11, 2007
inviting bids for the manufacture and supply of HSRP in respect
of the existing motor vehicles and vehicles to be registered in
the State of Orissa. The said NIT was not taken to logical
conclusion and a fresh NIT was issued on July 6, 2009 on BOO
17
2008 (1) GLT 1020
46
basis. In that NIT, inter alia, eligibility criteria has been
provided that bidder should have experience of working in the
field of HSRP having used the security features as mentioned
in Rule 50 of 1989 Rules. However, NIT does not insist on
conditions like experience in the foreign countries and minimum
prescribed turnover from the said business. In what we have
already discussed above, no case for judicial review or
intervention in the said NIT is made out.
56. For the foregoing reasons, both appeals must fail
and are dismissed with no order as to cost.
…………………………J
(R. V. Raveendran)
………………………..J
(R. M. Lodha)
………………………..J
(C.K. Prasad)
New Delhi
May 12, 2010.
47